ICG Hazard, LLC (Commission decision, August 1, 2007)

Plain-English summary

ICG Hazard sought to reopen a citation penalty assessment that became final when the company missed the 30-day contest deadline. ICG said the employee responsible for returning the assessment form was discharged during the response period, and the company did not find and submit the form until nearly three months after receiving it. The Secretary did not oppose reopening the citation assessment but noted that no penalty had been issued for a related order, so there was no order assessment to reopen. The Commission explained that mistake or inadvertence may justify relief when good cause is shown. It remanded the citation assessment for the Chief Administrative Law Judge to evaluate ICG's explanation and decide whether the case should proceed.

Decision snapshot

• Governing provisions: 29 C.F.R. § 2700.1(b) and 30 U.S.C. § 815(a)
• Outcome: The citation assessment was remanded for a good-cause determination; no related order assessment existed to reopen.
• Key point: A personnel change that disrupts assessment handling may support reopening, but good cause must be established before the penalty contest can proceed.

Full text (FMSHRC public release)

Federal Mine Safety and Health Review Commission

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

601 NEW JERSEY AVENUE, NW

SUITE 9500

WASHINGTON, DC 20001

August 1, 2007

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH

ADMINISTRATION (MSHA)

v.

ICG HAZARD, LLC

:

:

:

:

:

:

:

:

Docket No. KENT 2007-170

A.C. No. 15-18850-100852

BEFORE: Duffy, Chairman; Jordan and Young, Commissioners

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (2000) (“Mine Act”). On February 14, 2007, the Commission received from ICG Hazard, LLC (“ICG”) a motion by counsel seeking to reopen a penalty assessment that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C.
§ 815(a).

Under section 105(a) of the Mine Act, an operator who wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).

On August 10, 2006, the Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued a citation and order to ICG. On October 21, ICG received the proposed assessment for the citation. ICG states that the employee who was responsible for returning the assessment form in order to contest the proposed assessment was discharged during that time period. Accordingly, ICG did not discover the form and return it to MSHA until January 15, 2007. ICG was then notified that its response was untimely. The Secretary states that she does not oppose ICG’s request to reopen the penalty assessment related to the citation. However, the Secretary further states that she does not agree to the reopening of the order because no penalty was issued for that order.

We have held that in appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have become final Commission orders under section 105(a). Jim

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“JWR”). In evaluating requests to reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F.R.
§ 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure”); JWR, 15 FMSHRC at 787. We have also observed that default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to timely respond, the case may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

Having reviewed ICG’s request, in the interests of justice, we remand this matter to the Chief Administrative Law Judge for a determination of whether good cause exists for ICG’s failure to timely contest the penalty proposal and whether relief from the final order should be granted. If it is determined that such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700.

______

Michael F. Duffy, Chairman

______

Mary Lu Jordan, Commissioner

______

Michael G. Young, Commissioner

Distribution

Melanie J. Kilpatrick, Esq.

Rajkovich, Williams, Kilpatrick & True, PLLC

2333 Alumni Park Plaza, Suite 310

Lexington, KY 40517

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021